Sunday, February 28, 2016

About 55 percent of all arrests for drug possession in Texas in FY 2014 were for marijuana, according to the Department of Public Safety. There were 67,196 arrests statewide for pot possession and 55,460 for cocaine, opiates, synthetics, and all other narcotics.

According to the Office of Court Administration (p. 73 of pdf), the conviction rate for marijuana possession cases in FY 2014 was 48.2 percent in statutory county courts and only 42.3 percent in constitutional county courts, meaning a slight majority of those arrested for low-level pot possession are not convicted.

So, Texas cops arrest pot smokers and take them to jail more often than they make arrests for much more serious drugs, disrupting people's lives and needlessly cycling extra folks through the county jail, most of whom will never be convicted. What a friggin' waste of time and resources!

Here are a few recent odds and ends that merit Grits readers' attention:

5th Circuit gives no incentive to prevent needlessly deadly SWAT raids
Radley Balko at the Washington Post has an excellent column about a botched SWAT raid in Abilene in which one of the business owners were gunned down. The 5th Circuit ruled the officers had qualified immunity but added, "We are troubled by the unwillingness of the City of Abilene’s counsel to
concede at oral argument even that there was anything unwise about the
raid, which suggests that nothing will be done to prevent a repetition
of this tragedy the next time APD needs to inspect the records of a
business whose owners are known to be armed." Wherein lies the problem with law enforcement getting such sweeping immunity - there is little or no incentive for officers to respect constitutional rights when they cannot be held accountable for violating them.

'Denton's scandal-prone sheriff'
Denton County
Sheriff William B. Travis (despite his campaign claims, of no relation
to WBT at the Alamo) sounds like quite a piece of work. The Dallas
Observer offered up an extensive review
of the various allegations - from infidelity to domestic violence to
allegedly fudging facts for a search warrant while he was a DEA agent -
dogging the incumbent headed into the GOP primary this week.

Boosting felony theft thresholds doesn't increase crime
Pew's Adam Gelb has an item demonstrating that "increased felony [theft] thresholds have not resulted in higher property crime or larceny rates." For reasons Grits does not understand, the MSM never covered Texas' move to boost property theft thresholds last session. A Texan now must steal $2,500 or more to be prosecuted for a felony; by comparison, the threshold in Virginia is $200, though in most states it's higher.

HPD reports on five recent controversial shootings of unarmed
residents by Houston police used in the case show that officers'
accounts were often accepted at face value despite conflicting evidence.
Some investigators who reviewed "officer-involved" shootings failed to
interview witnesses or appeared to disregard statements that conflicted
with officers' accounts, records show.

In at least three of the five investigative reports, officers
reviewing shootings accepted explanations from HPD officers even when
forensic evidence such as blood spatter patterns, locations of wounds
and HPD communication records appeared to conflict with the shooters'
defense of their actions.

Profiling the Bexar CIU
Our old pal Bruce Selcraig has a good story in the SA Express-News profiling Jay Brandon, the head of the Bexar County DA's Conviction Integrity Unit.

Risk assessments improve parole decisions
Prison Legal News has an informative piece on the growing use of computerized risk assessments to assist with parole decisions.

Redemption, if not forgiveness
The Houston Chronicle's Mike Ward has a feature on "a five-year initiative by state officials to put religion inside the
state's toughest lockups, using convicts with long sentences as
ministers to convert other prisoners to turn their lives around by
becoming Christians." Wardens say the program is helping change prison culture. Grits has no problem with the program, but as a practical matter, best case scenario, the result demands redemption without the prospect of forgiveness. The brand of Christianity within which Grits was raised emphasized both values.

On the perils of coercive interrogation of juveniles
Check out an informative article on false confessions by juveniles
from the American Bar Association, honing in on how use of the "Reid
technique" for interrogations poses special risks when applied to young
people.

Sandra Bland's death in the Waller County Jail was remarkable mainly for the massive attention it has received compared to scores of other inmates who perished in anonymity. Most deaths in county jails are glossed over almost immediately and never aggressively investigated by the press. Unless family members can afford to investigate, hire attorneys and sue, at most a one-time small announcement in veiled language is all the public will ever hear of in-jail deaths. The UK Guardian published an op ed this month by the mother of Rafael Solis about his 2009 death in the Webb County Jail for which the family has aggressively sought redress. Here's a notable excerpt:

The truth, we now know from official reports, was that Rafael was put
in handcuffs and shackles, held face down against the floor of his
cell, stomped on and beaten until he died.

He had two fractured ribs, diaphragm contusions, hemorrhages on his
back and chest and bruises and abrasions all over his body. A subsequent
report from the Texas Rangers even noted there were cross-patterns on
his body that matched the laces from a jailor’s boot and a bruise on his
face that matched the pattern of the drain on the floor of his cell.

The jailers claim that Rafael was experiencing alcohol withdrawal,
and jailors were just trying help by putting his pants on him so he
could be transported to the hospital. But broken ribs aren’t a symptom
of alcohol withdrawal. And bruises all over your body, or boot prints on
your chest, don’t usually result from trying to get someone get
dressed.

According to the coroner, the jailors’ “help” asphyxiated Rafael, and he died.

Yet when a court recently ruled that seven jailors implicated in
Rafael’s death should stand trial in a case saying their excessive force
killed my son, all seven appealed. Each now claims they have immunity
from prosecution because, well, they were just doing their jobs, in
their official capacity, at the Webb County jail. The appeal is pending
as my family and I continue to wait for justice.

We may never know for sure what “doing their jobs” included, because
the jailhouse cameras were – for a reason we still have not been told –
not recording on the day Rafael died.

Wednesday, February 24, 2016

Accusing Gary Cobb
Former Court of Criminal Appeals Judge and current Austin defense attorney Charlie Baird really doesn't want Gary Cobb to be the next Travis County District Attorney, a spot which will be effectively decided in the March 1st Democratic primary. Baird is treasurer of a PAC called Citizens for an Ethical Travis County which has put up this attack site dumping opposition research on the Democratic candidate and accusing him of "misconduct." Strong accusations, and Baird is a credible messenger, particularly among Travis County Democrats. But it's pretty late in the game to be releasing such allegations without a paid attack vehicle. A lot of folks consider Cobb the front runner in the four-way race.

Vanita's Homecoming
Vanita Gupta is not a Texan but after her involvement in the Tulia drug sting cases, as far as Grits is concerned, she remains a beloved adoptee and a personal favorite. I'm looking forward to seeing my long-time friend, who is now director of the USDOJ Civil Rights Division, when she speaks at UT-Austin's Barbara Jordan forum today. See the Statesman's preview of the event. I miss Vanita, we haven't spoken since she became a big shot.

Compensating Alfred Brown
I'll be interested to see if the Comptroller gives compensation to Alfred Dwayne Brown. Based on how they've decided cases in the past where exoneration did not result in an actual-innocence finding, it'll be a judgment call. They've given some similarly situated exonerees compensation and denied others. If they say "no," I'd expect Brown to file a civil rights lawsuit.

Waco drug cop(s) may have lied about informants
A 26-year veteran Waco drug enforcement detective has been suspended after it was revealed he allegedly "lied about his use of confidential informants to obtain arrest and search warrants," and soon thereafter his commander, a 36-year veteran and the department's first female assistant chief, was also suspended.

Toward pro-family visitation policies
Check out an absolutely excellent column on problems with prison and jail visitation policies from our pal Doug Smith, who called for "frequent and
meaningful contact with their loved ones in environments that allow children to
be children, yet only one state has a child-friendly visitation area. Less than
ten states have overnight policies, and few of these policies are geared toward
overnight stays with children. Few state prison systems include family contact
when developing rehabilitative programs.
How do we expect incarcerated men and women to become fully productive
members of communities within the very families that will support them upon
release?"

Prosecuting fish-related crime in Palau
As many Grits readers are familiar with the Attorney General of Palau (who is now back on the job after a brief, unanticipated hiatus), I should point out this fascinating piece from the New York Times Magazine which references him, though not by name, in the context of the island nation's battle to combat illegal overfishing in waters designated for conservation.

A New York Times article yesterday titled "Lack of video hampers inquiries into Houston police shootings," discussed here by Amanda Woog, highlighted the fact that, unlike most other Texas police departments, Houston PD does not have dashcams in the overwhelming majority of its police cars. As a result, "there was no video of ... most of the dozens of other
questionable shootings of unarmed people by Houston police officers during the past decade. None of them led to the criminal prosecution of an officer or significant discipline by the department"

What the article didn't explain was why Houston cop cars don't have cameras.

Most Texas law enforcement agencies first installed dashchams after Texas' racial profiling law passed in 2001. That legislation required reporting on racial information about drivers at traffic stops and vehicle searches. In addition, the Lege authorized $18 million in bonds (which voters approved) to pay for dashcams to be installed in local police cars. As an incentive to use them, the Lege created much more extensive data reporting requirements which an agency could opt out of if it installed dashcams in their cars. If an agency had applied for a camera grant but there wasn't enough money, the law stipulated, they were still exempt from the extra reporting.

Ironically, at the time the law-enforcement lobby collectively was far more afraid of the data reporting than the video. The "tier one" data collection gave some information, but it's impossible to prove discrimination from it in any meaningful sense. The "tier two" data, however, included more detail on consent search patterns which would, it was presumed, be sufficient to measure use of officer discretion, and that's what departments really wanted to avoid. Thus, dashcams were adopted rather non-controversially by agencies which received grants.

It turned out, though, the cameras were the much more significant reform. While in the first year there was some probative reporting by departments, by the second the larger ones had begun to parse their definitions differently and report data in ways that made it more difficult to draw valid conclusions. (You can't really tell much from the tier two data as it's reported today.) Meanwhile, dashcam video became commonplace and brought with it more of an impulse toward accountability than one would have assumed from the intensity of debates back in 2001 over data collection.

As a practical matter, the bond money paid for everybody who applied for dashcams except for Texas' two largest cities - Dallas and Houston. So they were able to forego full implementation of dashcams, with Houston, if memory serves, getting either none or a token number. Reported the Times, "Currently, only about 100 of the department’s 5,200 officers have [body] cameras, and about 200 cars are equipped with dashboard cameras."

Tuesday, February 23, 2016

National media has recently turned its attention to police-involved shootings in Houston, particularly shootings involving unarmed persons. A couple weeks back, in a collaboration with the radio show This American Life, the New York Times reported on an incident from last August at the St. Joseph Medical Center in Houston, where a young man experiencing a mental health crisis was shot by two off-duty Houston police officers working as security guards at the hospital.

And just this morning, the New York Times published an article, “Lack of Videos Hampers Inquiries into Houston Police Shootings,” which highlighted “questionable shootings” in Houston over the past decade, none of which “led to either the criminal prosecution of an officer or significant disciple by the department.” The Times reported that since 2005, Houston police have shot 268 people, 111 of them fatally. And Houston police have “shot at” 460, of whom nearly one in five was unarmed.

While the hook in today’s New York Times’ article was attributing the lack of national attention on the Houston police force to the lack of videos of the shootings, the substance of the article is really in its drawing attention to the grim statistics concerning police shootings in Houston. The data I have collected since the new officer-involved shooting reporting law came into effect in September 2015 bears out the Times’ findings and puts race into even sharper focus.

Of the fourteen police-involved shooting incidents that have been reported by the Houston Police Department, thirteen (93%) of the people shot were non-white – ten Black males (71%) and three Hispanic/Latino males (21%). To put that into perspective, 46% of people shot by police in the rest of Texas since September 2015 were non-white, with 16% Black, 29% Hispanic/Latino, and 1% “Other.” No other jurisdictions saw such high percentages of Black people shot as in Houston, including agencies in counties with comparable demographics, such as Tarrant and Dallas counties.

The people shot by Houston police officers also tended to be younger. Three of the fourteen were juveniles (one 15-year-old and two sixteen-year-olds) and the median age was 22. Nine of the ten Black males shot by Houston police were under the age of 25. Compare that to the rest of Texas, where the median age of people shot by police was 32.

A higher percentage of Houston police officers involved in shootings were white when compared to the rest of the state. Of the fourteen Houston police officers involved in shootings, eleven (79%) were white. In shootings in the rest of the state, 61% of the officers involved were white.

Finally, one aspect unique to Houston incidents is the use of robbery stings, which haven’t come up in reports from other agencies. Five of the fourteen people shot by Houston police were confronted in two robbery sting operations, and three of the people shot were killed. These incidents took place in public places and in broad daylight, which could also the increase the chance of a bystander being injured or killed. It seems these operations endanger the lives of not only the people confronted by police, but also the officers involved and the general public.

Related coverage: The Houston Chronicle has been reporting on and mapping HPD officer-involved shootings here.

Debtors’ prisons should no longer exist. While imprisonment for debt was common in colonial times in the United States, subsequent constitutional provisions, legislation, and court rulings all called for the abolition of incarcerating individuals to collect debt. Despite these prohibitions, individuals who are unable to pay debts are now regularly incarcerated, and the vast majority of them are indigent. In 2015, at least ten lawsuits were filed against municipalities for incarcerating individuals in modern-day debtors’ prisons.

Criminal justice debt is the primary source for this imprisonment. Criminal justice debt includes fines, restitution charges, court costs, and fees. Monetary charges exist at all stages of the criminal justice system from pre-conviction to parole. They include a wide variety of items, such as fees for electronic monitoring, probation, and room and board. Forty-three states even charge fees for an indigent’s “free” public defender. With expanding incarceration rates and contracting state budgets, monetary sanctions have continued to escalate. Additionally, many states and localities are now outsourcing prison, probation, monitoring, and collection services to private companies, who add additional fees and charges to the criminal justice debt burden of defendants.

The impact of criminal justice debt is especially severe on the poor and minorities as they are frequently assessed “poverty penalties” for interest, late fees, installment plans, and collection. Often they have to decide between paying criminal justice debt and buying family necessities. The deaths of Michael Brown in Ferguson, Eric Garner in New York, and Freddie Gray in Baltimore have prompted renewed calls for investigation of the adverse treatment of the poor and minorities in the criminal justice system. The fear of arrest, incarceration, and unfair treatment for those owing criminal justice debt creates distrust in the system.

In February 2015, a class action complaint was filed against the City of Ferguson asserting that the city’s jails had become a “modern debtors’ prison scheme” that had “devastated the City’s poor, trapping them for years in a cycle of increased fees, debts, extortion, and cruel jailings.” Moreover, the Department of Justice’s report on the Ferguson Police Department presents a scathing indictment of a system apparently more concerned with revenue collection than justice. Unfortunately, as illustrated by recent lawsuits and investigations alleging debtors’ prisons in Alabama, Colorado, Georgia, Louisiana, Mississippi, New Hampshire, Ohio, Oklahoma, Tennessee, Texas, and Washington, the abuses are not limited to Ferguson, Missouri.

The same concerns that led to the historical restrictions on debtors’ prisons have risen again with the growth of modern-day debtors’ prisons. Similar to the prisons in London during the eighteenth and nineteenth centuries that were criticized for using a privatized system that charged inmates for all services, including room and board, the current justice system improperly charges the poor. It is now time to revisit these concerns and implement effective restrictions to reduce the incidence of debtors’ prisons. To remedy these concerns, my Article proposes eliminating egregious sanctions, providing courts flexibility to base fines on earning levels, and establishing procedures to enforce restrictions against incarcerating those who are truly unable to pay their criminal justice debt.

For more on the topic, check out the class-action complaint filed last fall against City of Austin muni courts over debtors-prison style abuses.

My grandfather, W.D. Henson, happened to be the first president of the Texas Association of Counties, so I enjoy checking in on the TAC once in a while, if only out of familial nostalgia, and this morning was rewarded with these timely articles from their County magazine which merit Grits readers' attention:

Use of Force and Legal IssuesSpeakers: Mr. Todd Brown, TI Training LE, LLCMr. Jack Ryan, Public Agency Training CouncilModerator: Mr. Darren Jackson, Law Enforcement Consultant, TAC
Community disturbances and allegations of excessive use of force by
law enforcement personnel are a constant risk exposure for all law
enforcement agencies. Two of the best forms of defense against these
allegations include strong policies and training. During this session
the participants will learn about available resources to TAC RMP
members participating in the Law Enforcement Liability Program to help
mitigate the risk exposure. These include the model policy service
offered by the Public Agency Training Council and a new Resistance Response Training Simulator.

The Ferguson Effect: Law Enforcement Use of Force in a Post-Ferguson WorldSpeaker: Mr. Tom Brandt, Director, Fanning Harper Martinson Brandt & Kutchin, P.C.Moderator: Mr. Stan Lewiecki, Claims Attorney, TAC
On Aug. 9, 2014, a 28-year-old police officer made a decision that
would forever change his life and would soon become a watershed event
for the entire country – he shot and killed an unarmed black teenager.
The officer was Darren Wilson. The teenager was Michael Brown. The town
was Ferguson, Mo. This session will explore the climate that surrounds
the use of force by law enforcement since that tragic day in Ferguson.
This session will focus on practical approaches to defending law
enforcement officers who are accused of violating the 4th Amendment of
the U.S. Constitution.

Body-Worn CamerasSpeaker: Mr. Jack Ryan, Public Agency Training CouncilModerator: Mr. Darren Jackson, Law Enforcement Consultant, TAC
This training will review the current Texas state law (Senate Bill
158) pertaining to body-worn cameras. The presentation will cover how
this law affects policies and procedures, and how custom and practices
must follow policy, procedures and training.

Handling Our Mentally Ill in Our Texas County JailsSpeakers: Mr. Robert Davis, Attorney, Flowers & Davis, PLLCHon. Maxey Cerliano, Gregg County SheriffHon. Dennis Wilson, Limestone County SheriffModerator: Mr. James MacMillan, Law Enforcement Consultant, TAC
The speakers will discuss the issue of handling the mentally ill in
our county jails throughout Texas. This session will focus, in part,
on the liability and exposure that counties across the state face in
dealing with mentally ill offenders. The presenters will also discuss
the best methods to try to avoid liability, the present status of the
law, the relationships between state and county agencies in dealing
with the mentally ill and possible legislative actions during the next
legislative session. The presenters will also highlight the need to
develop close working relationships between sheriffs, county judges,
prosecutors, health care providers, and mental health and mental
retardation organizations. The presenters will give a short synopsis of
each of these areas and plan to devote half the session to answering
attendees’ questions.

Grits can't afford to attend, regrettably, but I wish somebody would cover it. How local governments can mitigate the risk of police shootings, in-custody deaths and violating the rights of the mentally ill are significant areas of interest for your correspondent. I know the conference is really about mitigating LIABILITY, not
necessarily reducing the frequency of those problems. But the interests
of insurance carriers coincide with reformers on many of these
questions more than is frequently realized.

Grits was also interested to learn about the "model policy service offered
by the Public Agency Training Council" for TAC "
members participating in the Law Enforcement Liability Program." If the
function of the policies are "to help
mitigate the risk exposure," then they have an incentive to be promoting
best practices to minimize the likelihood of unnecessary use of force.
There have been recent suggestions from the Black Lives Matter movement
and the Police Executive Research Forum on use of force policy best
practices, so the content of such policies is presently disputed
territory. It would be a particularly clever and potentially effective twist if reformers were able to enlist insurance carriers and risk managers as allies on that score.

Monday, February 22, 2016

An otherwise well-done Fort Worth Star-Telegram story on the Texas Court of Criminal Appeals races opened with this comment: "The Texas Court of Criminal Appeals is
about to get hit by a deluge of post-conviction claims that 'junk'
science was used to convict the innocent. It could hear as many as
50,000 post-conviction cases involving the improper handling of 'mixed
DNA' alone."

For the record, Grits thinks that assessment dramatically overstates matters. Yes, it's possible there are as many as 50,000 cases involving DNA mixtures statewide. But the likelihood that all will result in habeas writs, much less that those writs would ever make it past the trial-court level to the CCA, is another matter entirely.

Over the next few months we'll begin to see re-evaluations of DNA mixture analyses and learn what proportion of those 50,000 cases may have been so far off as to constitute grounds for relief. But the number will almost certainly be much, much lower than 50K. And even where bad science was used to secure a conviction, there may
be other evidence against a defendant which the CCA could decide still
holds up.

Similarly, reviews of bite-mark and hair-and-fiber cases involve hundreds and thousands of cases, respectively, but a much smaller number will evince errors in expert testimony so significant that a defendant may realistically expect relief. Typically bite-mark or hair microscopy were not the sole evidence used to accuse a defendant.

We're all guessing right now. No one can know for sure and I reserve the right to adjust this guesstimate based on new information. But if the number of successful habeas writs over DNA-mixture claims rises to several hundred, the process will have exceeded your correspondent's expectations. There will be some, but others surely will fall through the cracks. And,
of course, in many cases re-evaluating DNA-mixture calculations won't
affect the outcome at all.

For these reasons, Grits sees little evidence yet that the creation of Texas' junk science writ and the state's reviews of flawed forensics at the Forensic Science Commission will lead to vast numbers of post-conviction innocence claims. There remains significant uncertainty surrounding the process, but the fact that we don't know the outcome yet doesn't justify speculating the most exorbitant estimates.

Twenty states have reduced their prison populations by greater percentages (compared to peak levels) than has Texas, according to this analysis from the Sentencing Project. That confirms Grits' view that Texas' much-lauded 2007 de-incarceration reforms, which averted a projected new round of prison building, increasingly amount to small potatoes now that other states are taking on the issue. Plus, they're starting off with smaller prison systems than Texas (ours is the largest among states), while achieving reductions which are (in some cases much) larger.

Found the Sentencing Project, "Twelve states have produced double-digit declines within this period. Four states have reduced their prison populations by over 20%: New Jersey (31% since 1999), New York (28% since 1999), Rhode Island (25% since 2008), and California (22% since 2006, though partly offset by increasing jail use)."

Finally, Grits agreed completely with this observation: "Just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, so too have declines reflected changes in both policy and practice. These have included such measures as drug policy sentencing reforms, reduced admissions of technical parole violators to prison, and diversion options for persons convicted of lower-level property and drug crimes."

Texas enacted a couple of minor but significant policy changes in 2015, after the period
covered by the Sentencing Project analysis, which could inch prison
populations downward a bit more: Increasing property thresholds for
theft and allowing state jail inmates to earn "diligent participation"
credits which can reduce their length of incarceration. But those are subtle, incremental changes. To reach double-digit reductions in incarceration rates, much less to join the states on top of that list, will require much more significant policy changes.

Body camera implementation
The Texas House Select Committee on Emerging Issues in Law Enforcement will hold a hearing March 21st related to implementation of body cameras among police officers and the grant system set up by the state to pay for them last session. RELATED: Check out this new analysis regarding police bodycam transparency issues.

Holding jail staff accountable for inmate checks
The Texas Department of Criminal Justice has fired a supervisor and disciplined 17 other employees out of Amarillo for failing to perform inmate welfare checks on a cell where an inmate was severely beaten and killed. This is becoming a recurring theme: Jails and prisons in Texas are becoming slightly more likely to discipline or (rarely) fire employees for failing to perform their jobs and more likely to double check to see if written logs have been tampered with or falsified. It's still spotty and case by case - the norm is probably still to tolerate such behavior rather than regulate it, much less prosecute it. In Harris County, for example, the Sheriff responded to a scandal of failed oversight by slashing in half the number of compliance officers tasked with uncovering such failures. But for years one would never hear of jailers or prison guards fired or disciplined on these grounds. These days, the topic bubbles up with surprising frequency.

A one-sided popularity contest
Police unions' insensible attacks on Beyonce, including the Dallas Police Association's announcement that it may join a boycott on security work at her concerts, seem tone-deaf and misplaced. Reported CNN: "Joe Gamaldi, the vice president of the Houston Police Officers' Union in
Texas, said the group wants more information before deciding whether to
join the boycott." Gamaldi's smart to hesitate before jumping on that bandwagon. Especially in H-Town, she's more popular than they are. UPDATE: The Dallas union decided against a boycott.

A call to make polygraphs admissible evidence
In an era when Texas is making headlines for debunking junk science, a DPS official wants to expand use of lie-detector tests in court and allow them admitted as evidence. Here's an excerpt from a story out of Idaho:

Walt Goodson said he has been training law enforcement in polygraph examinations for about a decade.

Goodson is president of the American Polygraph Association and a
longtime employee of the Texas Department of Public Safety. He said the
tests should primarily be used by law enforcement for the benefit of
investigations.

“I’m a big believer that if a polygraph is in wrong hands bad things
can potentially happen with it,” he said. “It was designed as a law
enforcement tool.”

Goodson said he would like to see polygraph exams admissible in court. The tests are not admissible in Texas.

“I think it’s a useful tool, I’ve never personally seen
harm come to people from it,” Goodson said. “In the more than a decade
that I’ve supervised the polygraph program in Texas … we’ve never once
gotten a false confession.”

New Mexico voters to consider bail reform
Voters in New Mexico will decide in November whether to institute major bail reform which allows judges to hold dangerous offenders regardless of ability to pay, while defendants who are "neither a danger nor a flight risk couldn’t be detained before trial
solely because of a financial inability to post a money or property bond." If they win, perhaps it will give momentum to Senate Criminal Justice Committee Chairman John Whitmire's promised push for bail reform in Texas in 2017.

Criminal-justice related political races are odd birds because the issues do not fall along obviously partisan lines, even if candidates are elected on those terms. Thus, Grits doesn't follow these elections through a partisan lens, particularly, but rather based on which candidate is best for promoting criminal-justice reform. Every cycle there seem to be a few local races which have statewide implications, so it's worth mentioning a few of them ahead of the March 1 primary.

The Sheriff's race in Fort Bend County features a reformer incumbent, Troy Nells, vs. a revanchist candidate backed by disgruntled ex-deputies complaining they lack free speech on the job. (Think: How much free speech do you get to exercise at your job when you disagree with your boss?) One of the challenger's big issues is to repeal an officer-safety based policy that reduced deputies' opportunities to initiate high-speed chases. Fort Bend County is growing fast and in many ways this is less a Tea Party vs. the Establishment race than a generational dispute between a young suburban professional class and old-school sheriff's deputies who liked the autonomy they enjoyed back when Fort Bend was more of a rural outpost. A Nells victory would signal that county voters have matured enough to accept the responsibilities of what increasingly has become a large suburban county.

In Nueces County, Democratic DA Mark Skurka is running for reelection against Mark Gonzalez, a defense attorney who quite literally has the words "Not Guilty" tattooed across his chest, reported the Caller Times. Regardless of party, Skurka's part of what from the outside appears to be a longstanding office culture of concealing exculpatory evidence from defense counsel. Grits also isn't a fan of how he reacted to false assault charges being filed vs. jail inmates by Sheriff's deputies last year. (No deputies prosecuted, failed to review old cases for false convictions.) He's the hometown DA for the Democratic Chairman of the Texas House Criminal Jurisprudence Committee and the Republican Chairman of the House Calendars Committee, giving him out-sized political influence for a Democratic office holder. The winner faces a Republican opponent in November.

The Travis and Williamson County DA races are interesting spectacles but Grits sees few implications for justice reform based on the outcome. Similarly, several folks have tried to insist I should care whether Morris Overstreet or Kim Ogg represents Democrats against Devon Anderson in November. (For the record: I have tried, but I cannot.) I'll be watching the Travis County Sheriff's race to learn whether and how voters considered immigration-ICE issues, but I'm not convinced there are implications beyond that.

Statewide, I'll be watching the Sid Harle/Sid Smith race on the Court of Criminal Appeals to see if Texas GOP voters have flat-out lost their minds, and the Keel-Oldner-Wheless race to see if Judge Wheless' strategy of ignoring the establishment and seeking Tea Party, pro-life and generally conservative movement support is enough to win a primary in a low spending, low-profile race.

This is a non-comprehensive list. Let me know in the comments what other elections with criminal-justice reform implications folks should be watching.

Friday, February 19, 2016

The Austin Statesman has a feature on the most insidious enforcement mechanism yet for Texas' debtors prison system, coercing payments from indigent defendants via threat of incarceration.

Following up on the EFF report regarding license-plate reader vendors and roadside debt collection by police in Texas, Eric Dexheimer and Tony Plohetski at the Austin Statesman delved into the topic in more detail in today's paper. The story opened with this workaday description of what promises soon to become the future of Texas traffic enforcement:

When Guadalupe County Precinct 3 Deputy Constable Jesse Rosales
arrives to work each morning, his computer greets him with a list of
people who have outstanding warrants, mostly for minor crimes like
traffic offenses. In the past, finding the offenders was time-consuming,
and Rosales says there were plenty of days he came up empty.

Yet
unlike the old warrant lists, the ones the deputy receives today are a
technological wonder. Each defendant’s name is accompanied by a picture
of his vehicle; an aerial photograph pinpoints the exact location where
the car was observed only hours earlier.

This isn't some futuristic Big-Brotherish dystopian vision, it's what traffic enforcement cops at the local constable's office do with their time today and tomorrow in Guadalupe County, Texas. Continued the Statesman:

The pictures Rosales uses are made possible by high-speed cameras
attached to fleets of private cars driven around by bank and finance
company repo men cruising neighborhoods in search of delinquent auto
loans. Nationally, about 2,300 photos per minute flow into a massive
database of license plate photos maintained by a Fort Worth company
called Digital Recognition Network.

Then,
in a partnership that civil libertarians and privacy advocates worry
could cross the line from efficient policing to intrusive government and
corporate snooping, client law enforcement agencies use that
information to obtain up-to-date locations of scofflaws who owe money.
When Rosales finds one of his targets using the photos and his own
company-supplied license plate reading camera, the person can be
arrested, or pay up right away — 10 months ago, the deputy also had a
credit card reader installed in his cruiser.

In exchange, a Digital Recognition Network-affiliated company called Vigilant Solutions gets to keep a 25 percent fee tacked onto the fine. For a standard traffic violation warrant, that comes to about $75.

In
recent months, constables and the sheriff’s department in Guadalupe
County have installed the system, as have the cities of Kyle and
Lakeway. (Lakeway owns its cameras and so gives no money to Vigilant
from warrant collections.) Others around the state say they are
considering it. Those using it report they are thrilled with the
results. Letting people pay directly to police is convenient for
defendants, they say, and potentially keeps them out of jail.

It
has also been lucrative. A year ago, Rosales was working as a
constable’s deputy only one day a week. But after he began bringing in
thousands of dollars a month, “I went to our court and asked for a
full-time person,” said Guadalupe County Commissioner Jim Wolverton.

Quite a few other states have regulated or even prohibited long-term retention of license plate reader generated location data by law enforcement, with Utah and Arkansas banning "private companies from amassing license plate data" entirely, the paper reported.

Texas ad seg numbers down by nearly half since '06Reported the Houston Chronicle (2/13), "just over 4,900 convicts were being held in administrative segregation in Texas, down from more than 9,500 in 2006." TDCJ "now has several programs in place to divert more convicts from solitary
confinement, including one that gives prisoners a way to renounce their
gang affiliation and another that diverts mentally ill convicts to a
therapeutic program that provides education and rehabilitative program
to help the transition to a regular prison or parole."

Civil commitment judge leaves office under cloud
Another blow to the state's completely dysfunctional civil commitment program: The judge assigned to oversee all those cases just left office under a cloud. Reported the Houston Chronicle (2/16), "Michael Seiler, the Conroe judge who presided for years over the state's
troubled civil commitment program for sex offenders, resigned his post
Tuesday as part of a deal with prosecutors that ended a criminal
investigation into a campaign mailing he sent to former jurors."

Sex-offender residency restrictions dumb as an Okie*
Here's a story out of Tulsa, OK which demonstrates the case underlying Texas' Voices litigation strategy to roll back sex-offender residency restrictions in small towns. Reported the Tulsa World, since implementing geographic residency restrictions in 2006 which banned sex offenders from virtually everywhere but "industrial areas, wealthy neighborhoods, or undeveloped areas," hundreds of Tulsans have de-registered because they have no address: "2006 just turned our world upside down, prior to that we had 15 to 20
(failure to register) violations a year. Since that we have hundreds of
violations a year," said the officer managing the program for the Tulsa PD, who added, "Legislators felt that if we put all of this off limits, they'll just
move out of state. That didn't happen, they just stopped registering." Folks gotta live somewhere.

Tuesday, February 16, 2016

Wow,
while I was first busy then sick last week, the story of Harris County
Sheriff's Deputy Darren Goforth's murder blew open into an amazing mess,
as it's now been revealed that
at least two other deputies besides Goforth were having an affair with
the woman allegedly at the center of the event. Further, "There is
another investigation in the process, with similar allegations against
another deputy." Miles is mentally ill, has been declared incompetent to
stand trial, and has been sent to a state mental hospital for
competency restoration.

A love triangle - or quadrangle, o mas - between sheriff's deputies and a "badge bunny," in law-enforcement lingo,
might provide all sorts of possible avenues for the defense to suggest
other motives or scenarios. For example, if it turns out one of the
deputies involved with the woman had an independent relationship with
Mr. Miles, one might begin to wonder if he were acting on his own
behalf. Compared to the officers she was dating, Mr. Miles doesn't sound
like her type. ¿Quien sabe? The mind reels at the possibilities opened up by these remarkable revelations. Who knows how deep the rabbit hole goes?

Whatever
the truth turns out to be, we're a long way past the point when Sheriff
Hickman can blame the Black Lives Matter movement. Last week he issued kind of a bullshit non-retraction on that topic, declaring absurdly to a Chronicle reporter,
"'At the press conference, I drew a conclusion based on the absence of
any other information,' he said. 'I stand by that.'"

So similarly, if based
on a complete absence of information, Grits were to draw the conclusion
that Sheriff Hickman spends his evenings dressing up in women's
clothing and performing a lounge act in drag, that'd be perfectly
reasonable too, right? Because it's clearly okay to say inflammatory crap with no factual basis whatsoever, then "stand by" it after it's proven to be a bunch of demagogic horse hockey. What's good for the goose, after all ...

A quick review of recent, regional police shootings coverage highlight a number of topics which merit Grits readers' attention:

Calling out media manipulation on police shootings
Austin PD's media manipulation tactic of waiting until after the initial press cycle to inform reporters that naked high school kid in Austin who was gunned down by a police officer was unarmed backfired on them in the case of David Joseph. Opined the Statesman's editorial board:

That delay was too long for information that had to be known to the
police department within hours — if not sooner — following the shooting.
That is a misstep the department should not repeat as the investigation
into this tragedy unfolds.

It’s also the kind of misstep that undermines public confidence in
the police department’s ability to investigate its own officers. It’s
the kind of lag that fuels public perception that the police department
is buying time to craft excuses to justify an officer’s use of lethal
force under suspect circumstances rather than conducting a fair
investigation that goes where the evidence leads.

Managing coverage of police shootings media cycle by media cycle - eliding the truth as long as possible while the department gets its story straight - is a tried and true old-school method of media management that will probably soon become outdated now that the news cycle runs an hour or two at a time instead of 24. This has been ridiculously common as long as I've followed these civil rights issues around police shootings. You can often tell the dubious ones because the department's story changes over time. Initial press announcements following police shootings in many cases misstate or obfuscate key facts - like overlooking that the naked guy was unarmed - which sometimes are corrected in followup coverage days or weeks later, sometimes years later in litigation, or sometimes not at all. It's really good to see the media calling them out on it.

'I'm down, bro'
A civil rights suit has been filed, reported the Texas Tribune, in which police were caught on video beating an already-detained jaywalking suspect:

In last fall's much-publicized incident, Austin
police officers arrested Jeremy King, 22, and Lourdes Glen, 24, alleging
they had jaywalked on Austin’s 6th Street. Video taken of the arrest
shows several officers forcing King and another friend — Matthew
Wallace, 23 — to the ground. King and Wallace are black. Glen is
Hispanic.

At one point in the video, an officer appears to
punch Wallace repeatedly, though Wallace is already being held on the
ground by three officers.

“I’m down, I’m down, bro,” Wallace says on the video, which went viral online. “I’m down, I’m down. What did I do?”

There was an imminent threat he might text someone
The wife of an unarmed man killed in San Antonio when police mistook his cell phone for a gun and shot him has sued SAPD in federal court. This happens a lot. Cell phones cost $600 so people don't want to leave them in their car. Plus, some folks access their insurance info that way. Of course they bring their phone with them.

Monday, February 15, 2016

The rising number of elderly prisoners, the associated escalating health care costs, and the strange disconnect between incarcerating the elderly and the ostensible public safety goal of prison, are issues about which professionals in the field have long been aware but the public, for the most part, simply isn't aware. At the Texas Observer, Dick Reavis has a story titled "No Place for Old Men," which included this notable excerpt:

The state of Texas operates
109 prisons holding about 148,000 inmates. Some 27,000 of them are,
like Alonzo, over the age of 50. They account for about 18 percent of
the prison population, and are the fastest-growing demographic group
among prisoners. By most estimates, they are also the most expensive to
keep under lock and key. According to TDCJ spokesman Robert Hurst, the
average cost of housing Texas inmates is about $20,000 a year, but
medical and end-of-life expenses hike that figure to some $30,000 for
elderly inmates. In other jurisdictions, the cost is even higher. A 2012
report
from the ACLU calculates the average national expense for keeping a
prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.

Both demographic factors and get-tough sentencing have transformed
what were once mere penal institutions into hospitals, assisted living
centers and nursing homes, too. The University of Texas Medical Branch
operates a freestanding hospital in Galveston
for TDCJ, which also contracts with UTMB and the Texas Tech medical
school to send prisoners to 146 community hospitals. Texas prisons now
boast of “respiratory isolation rooms,” “brace and limb services” and
hospice facilities in which 90 Texas inmates were eased into eternity
last year. More than 300 inmates in Texas prisons use wheelchairs, Dr.
Murray says.

Lots of excellent detail and telling anecdotes in the story, Reavis did a great job capturing the dynamics of the issue.

My wife, Kathy Mitchell, has been working with local advocates on the rollout of police bodycams and the implementation of local policies governing their use. She authored this guest post articulating shortcomings in both Austin's current bodycam policy as well as the governing state statute.

We've all heard the old conundrum, if a tree falls in the forest and no one is there to hear it, did it make a sound? The rollout of police bodycams in Texas raises a similar dilemma: If misconduct is recorded on a police bodycam but the public isn't allowed to see it, do the cameras really hold police accountable?

The City of Austin recently closed its RFP for a body camera vendor. According to the calendar in the RFP (about page 22 of the document), the department plans to move quickly, picking a top vendor and launching a pilot by March 1.

However, APD has yet to resolve any of the more complex issues that must be addressed by a body camera policy before cameras can be turned on everyone that an officer might encounter:

when can officers turn off cameras and what documentation must accompany such a decision?

when can the public see video related to allegations of misconduct?

when can a complainant get a copy of a video related to a complaint?

how and when can members of the public elect to have video of their encounters with police made public?

under what circumstances can the media or community groups see video of officers' encounters with members of the public?

can facial recognition technology be used to turn video storage databases into data about individuals?

Recently, the Brennan Center issued a review of body camera policies in various cities. Austin's current published policy (Policy 303 of APD's Policy Manual) addresses a total of none of the issues related to victim and witness privacy, other uses of the data, and protection of first amendment rights.

During one public meeting last December after the release of some draft policy concepts, members of the public pressed for answers in another key area -- when and how the public will be able to see video related to incidents of police misconduct. In the aftermath of Chicago's lengthy court battles to prevent public release of videos showing police shoot Cedrick Chapman and Laquan McDonald, Austin's decisions on this front will be critical to creating public confidence in the body camera program.

Radley Balko of the Washington Post took a look at what can happen if the local policy falls short. He notes that, with the notable exception of Seattle, many cities have announced that the police department will decide who gets to see video and when. "Seattle has found a way to put the videos online while anonymizing the faces of people who appear in them." That sounds like a good model for Austin.

Austin starts this process with a profoundly flawed legislative framework passed last session along with the more laudable (and more widely publicized) $10 million in grant funds to outfit local police with body cameras. Under Sec. 1701.655 of the Occupations Code, Austin must include in its policy a provision "entitling an officer to access any recording of an incident involving the officer before the officer is required to make a statement about the incident." That clause alone serves to undermine the entire endeavor. Citizens who are part of an "incident" involving police won't get to see video before making a statement because they might fabricate a story to fit the video. But isn't the same true for officers? This needs to be fixed in 2017.

The statute gives police departments the ability to keep video essentially secret, but it also gives cities and counties the option to release the video for any "law enforcement purpose." So, why wouldn't the city just define transparency and accountability as a "law enforcement purpose?" Doing so would create a local framework for releasing video of incidents of deadly force and incidents leading to an investigation of an officer. Austin is not Chicago, and should take steps to demonstrate that fact before the first body cameras are clipped to an officer's uniform.

The new statute (Sec. 1701.661) also suggests a framework for giving the public a great deal of control over which videos related to minor incidents like traffic stops can be released. APD cannot release these videos without "written authorization." Austin can define "written authorization" to be a simple opt-to-release clause on traffic tickets and citations. An officer can tell a motorist that the interaction has been videotaped and ask if the motorist agrees to public release of the video. One would guess that people who have been very happy with their encounter or very unhappy with their encounter are most likely to agree to public release.

But a lot has to happen very rapidly for a strong body camera policy to emerge from City Council and Chief Acevedo's office by the March 1 deadline for the pilot project set out in the RFP.

Wednesday, February 10, 2016

Here are a few of items which merit readers' attention even if they haven't made it into independent posts:

Finally, some real de-incarceration talk
At the House Corrections Committee on Tuesday, reported Chuck Lindell at the Austin Statesman, "Taking the first step on a topic that could generate heat in the 2017
legislative session, Texas lawmakers began discussing Tuesday whether
some nonviolent drug crimes should carry shorter sentences or be
converted from felonies to misdemeanors. Your correspondent was otherwise engaged but plans to watch the hearing over the weekend. See also coverage from KLRD, KXAN, the Houston Chronicle, and Grits' preview of the issues on the agenda.

Deputy Goforth's murder motivated by mental illness, not Black Lives Matter
Yes, the Harris County Sheriff claimed Deputy Darren Goforth's murder was motivated by Black Lives Matter protests. For the record, whether that was an intentional lie or just flawed supposition, we now know for certain that's not the case. Instead, the killer, Shannon Miles, is seriously mentally ill, reported AP, and was declared incompetent to stand trial by a court. He'll be back again for another bite at the apple after four months on his meds at a state mental hospital. Records show Miles "has been committed to mental health facilities at least twice in recent years." In the end, I'm guessing Miles shot Deputy Goforth for the same reason Abraham took Isaac to the mountain to sacrifice him: He heard voices telling him to do it.

Easing sex-offender residency restrictions in small towns
Texas Voices is flexing its muscle, aiming to eliminate sex-offender residency restrictions in dozens of small "general law" towns, according to this AP report.

a broad legal challenge has led more than 20 towns in Texas to ease restrictions over the last few months on where sex offenders can live instead of fight a costly battle in court.

While other states, including neighboring Oklahoma,
continue to push offenders away from some neighborhoods, about 45 Texas
towns received letters in November from the group Texas Voices for
Reason and Justice demanding they repeal residency restrictions. The
nonprofit, which is critical of sex offender laws it considers
ineffective, also has sued 14 towns and has a powerful ally — the state
attorney general's office.

Next session, someone will surely file a bill to give general law towns that authority. But then Texas Voices gets to have the debate, which is what they're trying to start here. Go get 'em, Mary Sue! And good for Richard Gladden, too, I was glad to see his name pop up in the story representing the group.

Pregnant, in jail, and can't make bail
Grits was on vacation and missed an awesome piece from the Texas Observer last summer by Alex Garcia-Ditta on pregnant women in jail revealed that:

In Texas, 300 to 500 pregnant women are booked into county jails each
month, and dozens gave birth while in custody last year. Women report
not getting enough food. They say the notoriously uncomfortable sleeping
mats cause back pain. And they feel mistreated and disrespected by
guards. One woman in a Travis County lockup last year said she was
shackled to her hospital bed while delivering her baby.

That's a lot of pregnant women in Texas jails at any given point in time. I wonder what proportion are otherwise eligible for release but simply could not afford to make bail? Three hundred to five hundred booked per month is a really big number. The anecdote in Garcia-Ditta's lede about the woman who lost her baby during unattended childbirth in a Wichita County Jail broke my heart. The Texas Commission on Jail Standards didn't learn of the incident for two years, until the woman filed a civil suit.

Finally, speaking of incarcerated women, check out a Texas Observer podcast from last month with the founder of Conspire theater group.

“In
the post-Ferguson (Missouri) environment,” Loewy said, “I think jurors
are much more open to the idea that police brutalize people.”

If he's right, that would signal a major shift.

For some years now, many advocates including your correspondent have considered civil courts a non-viable avenue for police reform in Texas because of qualified immunity, a culture of tort-reform among state judges, and the prosecutor-friendly 5th Circuit waiting to reduce or overturn any verdict that might be achieved at trial. It's one of the reasons Grits focuses so much on the Legislature; there's been more possibility for significant change at the capitol than via litigation on most of the issues I care about. In my experience, the Legislature can occasionally help matters; the most Grits tends to hope for from the courts is that they do not make things worse.

But these things run in cycles. And the vicissitudes of history appear to be altering the context of conversations about police abuse, both among jurors and officialdom. So far, with the exception of new reporting on police shootings, we haven't seen much legislative action on these topics. But if jury verdicts and settlements start to pile up, and the 5th Circuit
makes cities actually pay them, that will heighten the incentive for legislators and locals alike to
embrace reforms.

The Tribune asked the Harris County Sheriff’s Office, which
acknowledged this week it has "voluminous" files on the case, to provide
information gathered during Reyes’ encounters with local law
enforcement on the night the murders took place. The sheriff’s office,
which originally blocked release of the records by citing an ongoing
criminal investigation, has now adopted a different argument using a
more obscure exemption of the Texas Public Information Act.

Since Reyes was killed by a sheriff’s deputy, he cannot be
prosecuted. The exemption the sheriff cites is designed to allow police
agencies to block the release of files when there hasn’t been a final
conviction or deferred adjudication — something that's impossible to
achieve when the perpetrator dies while committing a crime. The law
enforcement agency has asked Attorney General Ken Paxton to block indefinitely any further release of the records sought by the Tribune.

Jay's of my generation - I'm not sure if he remembers but we (barely) crossed paths at The Daily Texan in the '80s, with him a year or so ahead of me there - so I'm surprised he considers this exemption "obscure." As somebody who was a frequent user of what was then called the Open Records Act to access law enforcement records during the mid-to-late '90s, Grits finds I still harbor a surprising amount of resentment over the changes made in 1996-97 that gutted access to law enforcement records in Texas. Not only do I remember it well, in many ways it was a defining moment for me.

For many years going back to the creation of the Texas Open Records Act following the Sharptstown Bank Scandal, Texas' open records laws were the envy of the nation. (If the Sharpstown history is new to you, start here and here for your remedial lessons.) From that time until the 1990s, national rankings of open records access by state routinely showed Texas and Florida tied or competitively 1-2 depending on the ranking criteria, with Texas particularly good on law enforcement records.

In 1996, after Texas law enforcement had operated under maximal openness for a quarter century, the Texas Supreme Court overturned the Attorney General opinions which had previously governed access to records on these topics. In a case styled Holmes v. Morales - that's then-Harris County DA Johnny Holmes (with his mustache filing as amici) and then yet-to-be-indicted Texas AG Dan Morales - the Supreme Court installed the provisions Root complains about in this article.

Then, the following year in 1997, the Legislature reacted. Police unions, prosecutors and the Texas Municipal League joined forces in a rare strange-bedfellows coalition to outflank the (generally disdained) newspaper and broadcast lobby, who at the time were virtually the only advocates for openness at the capitol, certainly on criminal-justice topics. Politicians may have their differences, but they can all agree to dislike the media!

So, instead of reinstalling the old standards which governed law-enforcement records for a quarter century, the Legislature codified the bad Texas Supreme Court ruling, changing the law so that it no longer required disclosure of records in Texas criminal
cases unless the case results in a conviction or deferred adjudication. The problem is, cases where the government exercised its authority without, in the end, being able to prove its case are exactly the sorts of situation most useful for public policy analysis. Such situations may include:

Cases involving police or prosecutor misconduct

Unsolved cases that were not pursued aggressively

Cases where police or prosecutors decide not to pursue charges

Suicides

Shootings where the suspect dies

The easiest way to sweep police or prosecutor misconduct under the rug
is to close records related to closed, unresolved cases. Then, all a prosecutor must
do to conceal misconduct from public disclosure is to not prosecute the case and nobody can
ever see the potentially incriminating information.

Speaking as someone who, at the time, was a heavy open-records user, the before-and-after difference in access was shocking and stark. Routinely, open records requests to police and prosecutors which previously had produced thick files began to generate a few pages or none at all. Agencies began to send a lot more requests to the Attorney General for opinions. And even where convictions occurred, the files somehow seemed to get thinner after that, with more exceptions applied over time in the letters to the AG asking for excuses not to disclose stuff.

Before that dark period, a Texan could be as proud of the state's open-records laws as she could its well-maintained highways back in the day. In 2016, both those statements come off as a
joke. On open records these days, we're considered middle-of-the-pack or worse. And let's please not speak of the roads.

As fate would have it, this issue first spurred Grits to begin monitoring state legislation, opposing bad bills, and eventually the following session, helping promote good ones. After seeing what happened to open-records access in 1997 without any serious opposition, I and a handful of friends decided somebody needed to pay attention to what went on at the capitol on this stuff!

Although state Rep. Harold Dutton still gamely files legislation most sessions to reinstate the pre-Holmes v. Morales standard - sort of a vestigial remnant of a long-ago lost battle - this regrettably has become sort of a dead issue among advocacy groups, in large part because there are fewer and fewer folks around, whether among the press or reformers, who remember what was lost.

Sunday, February 07, 2016

Grits despises Texas Court of Criminal Appeals elections. Nobody knows who the candidates are. And the campaigns don't raise enough money to educate any more voters than the candidates can reach by driving to a handful of poorly attended forums, or through the lightest possible smattering of earned media. The press barely covers the races, with the biggest outlets at most devoting one news article to all three races before the GOP primary (which is the whole enchilada in 2016 Texas).

The media or advocacy groups can vet candidates if they want but it seems to hardly matter. The results will be determined via the vicissitudes of decision making by an electorate with virtually no information about the court or the candidates and thus no basis whatsoever for choosing among them. I've never seen it polled, but in my experience most laypeople aren't even aware that Texas has separate high civil and criminal courts. Many voters quite literally aren't aware the Court of Criminal Appeals exists.

Thus, I won't be surprised if Steve Smith, with zero criminal law experience and a through-the-looking-glass judicial philosophy, were to defeat Sid Harle, who IMO is easily the most qualified candidate in all three races. Know-nothing demagoguery is all the political rage this season. Still, it's somewhat embarrassing that such an outcome is even possible.

The Texas Tribune reported that Smith "has focused on his opposition to what he calls “judicial
lawmaking." Smith said he entered the race largely because he
thinks Harle is too moderate."

“I got in at the last minute, right before the filing
deadline, when it was clear Harle would not have competition,” Smith
said. “The balance between moderate Republicans and conservative
Republicans has shifted, and it’s important that a proven conservative
take this spot.”

Smith cites Texas v. Villlarreal, a case in which the Court of Criminal Appealsruled
5-4 that blood drawn from drivers without their consent and without a
warrant is not admissible evidence in a DWI case, as an example of a
case that he says could’ve easily been decided the other way with afifth conservative voice.

“Those important cases are being decided 5-4, and I
think it’s important to educate the voters that, contrary to public
perception, the CCA is not far-right at the moment,” Smith said. “That's cause for concern.”

Harle has said it is not appropriate for judges to
address how they would rule in specific cases in advance of hearing them
in court.

“You can talk about your judicial philosophy, but you
can’t really broadcast what you’re going to do to that degree, or you’d
be subject to recusal,” Harle said.

Three things stand out here: First, Judge Harle is right. Every specific case about which Smith has opined on the campaign trail he'll find himself unable to influence once he's on the bench because the opposing side will be able to easily show he can't be a fair ... hmmmm, what's the word? ... oh yeah, a JUDGE!

Second, it's the height of Orwellian demagoguery for Smith to declare on one hand that he opposes
“judicial
lawmaking" then announce in the next breath that he intends to vote with the faction of the court which is engaged in overt, unapologetic judicial lawmaking, openly asserting their policy views over the Legislature. That's a logical disconnect akin to declaring, "I oppose abortion so I want to work for Planned Parenthood." A judge running for the CCA in this cycle can be for or against "judicial lawmaking." But if you're against it, you cannot simultaneously declare you'll vote with Government-Always-Wins faction on the court, which is precisely what he's saying.

Finally, Grits would reject Smith's framing of the current factions on the court. He portrays the four votes which reflexively side with the government as "far right," but usually conservatives view judicial decisions which empower Big Government without respect for individual liberties as a bug, not a feature. So, just as Smith critiques judicial activism while declaring he'd vote with the judicial activists, he promises to vote as a conservative on the court while pledging that he will empower government over the individual in all disputes.

In many ways, on many levels, this primary election cycle has been framed as a debate over "what is conservative?" Though most voters couldn't name a CCA judge or pick one of these candidates out of a police lineup, that's at root the question underlying this race, too.

Saturday, February 06, 2016

The Texas House Corrections Committee will meet Tuesday and Wednesday to discuss an array of interim charges, so lets preview each of them ahead of time. First up on Tuesday:

Study incarceration rates for non-violent drug offenses and the cost to the state associated with those offenses. Identify alternatives to incarceration, including community supervision, that could be used to reduce incarceration rates of non-violent drug offenders.

Study inmate release policies of the Texas Department of Criminal Justice, including the release of inmates directly from administrative segregation. Identify best practices and policies for the transitioning of these various inmate populations from the prison to appropriate supervision in the community. Identify any needed legislative changes necessary to accomplish these goals.

And on Wednesday they'll hear testimony related to their charge to:

Study recidivism, its major causes, and existing programs designed to reduce recidivism, including a review of current programs utilized by the Texas Department of Criminal Justice (TDCJ) and the Windham School District for incarcerated persons. Examine re-entry programs and opportunities for offenders upon release. Identify successful programs in other jurisdictions and consider how they might be implemented in Texas.

Let's walk through be basics on these.

Reducing drug offenders in prison
On incarceration rates for nonviolent drug offenders in Texas state prisons, the go-to source is the TDCJ Annual Statistical report; here's the FY 2014 version. According to that source, about 16 percent of TDCJ offenders on hand as of Aug. 31, 2014 were incarcerated for a drug offense as the primary charge, or 24,005 inmates out of roughly 150,000 incarcerated in TDCJ that day. Of those, 14,256 were incarcerated for possession only and 9,699 for drug delivery. Of the subset of those locked up in state jails (essentially fourth-degree felons), the same report found 37 percent were incarcerated for a drug offense, almost all of them (90 percent) for possession.

Notably, there were 1,998 inmates with a drug offense as their primary charge who are categorized by TDCJ as 3g offenders, a category largely reserved for violent crimes. The reference is to Sec. 42.12(3)(g) of the Code of Criminal Procedure. Drug offenses become 3g offenses if a child was present or involved or if the offense were committed in a drug free zone. While we may not like these drug offenders, its probably unhelpful to group them with murderers. This might be an example of people serving unnecessary extra time because we're "mad at" them, not afraid of them, as Sen. John Whitmire is fond of saying.

As far as the costs of housing drug offenders, the uniform cost report document prepared biennially by the Legislative Budget Board is the go-to source. They put the average FY 2014 cost at $54.89 per day.

OTOH, in truth, how much it costs to house a prisoner varies widely based on what unit they're housed in, whether they receive drug treatment, education, or other services, and whether they get sick, among other things. Recently Grits requested breakdown of the cost per prisoner at all TDCJ units as of 2014. (Thanks to TDCJ Public Information Officer Jason Clark for fulfilling that request.)

Looking at that level of detail, we can see, for example, that SAFP services delivered at the Jester I unit (built in 1885) cost $90.85 compared to an average of $58.72 at the four other units delivering SAFP services. These unit-by-unit data give a clearer sense of how widely costs can vary per prisoner depending on where they're housed. The $55 average LBB uses masks a wide range of differences and could be lowered by closing some of those higher-cost facilities.

As for alternatives to incarceration, my hope would be that debates could move beyond drug courts to the need to adjust drug sentences for low-level possession downward. Texas has invested a great deal in drug courts and proven conclusively that strong probation works. But the resource-intensive tactic cannot scale up to handle the volume of drug offenders cycling in and out of the system at all levels.

Thus, as the committee contemplates alternatives to incarceration, it's worth considering whether offenders caught with four grams or less of a controlled substances should be treated as felons at all, considering all the job and housing implications and other the collateral consequences a felony label entails. Shifting penalties to a Class A misdemeanor for up to four grams of a controlled substance would save the state big money and dramatically reduce collateral consequences for those low-level offenders.

How much money could be saved from reduced penalties? Last session, Rep. Senfronia Thompson proposed HB 254, which would have reduced the sentencing category for people possession less than a gram of a controlled substance, so a subset of the up-to-four-grams category. The Legislative Budget Board estimated that the state would save more than $105 million in the first biennium and upwards of $139 million in the second. If sentences for up to four grams were reduced to a Class A misdemeanor, the reduction in the incarceration budget would be even greater.

Those levels of savings could finance an impressive amount of treatment and diversion programming for these new Class A drug offenders, nearly all of whom would inevitably receive probation (just like most Class A drug offenders do now). Once the Comptroller certifies the savings, some or all of it could be diverted to probation departments to pay for additional treatment services and possibly reduce the portion of probation budgets paid for by probationer fees, an issue getting increasing levels of attention lately.

Last session the Legislature boosted TDCJ's budget by more than $400 million, which seemed like a remarkable amount for a bunch of self-styled fiscal conservatives to spend on a Big Government program with no clear extra benefit in public safety effectiveness. (Of course, the same can be said of the border surge.) And that doesn't include the portion of corrections spending outside of TDCJ's budget. In a fiscal environment where oil revenues are down and legislators will be looking for cuts, not increases, the best way to pay for alternatives to incarceration would be sentence reductions, which themselves constitute an "alternative" to sending low-level drug addicts to state prison.

Also relevant: Last year the United Nations issued the Mandela Rules related to the use of solitary confinement which include some relevant suggestions. Those rules emphasize that the period of imprisonment should be "used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life." When prisoners who've been in solitary are released, "the prison administration shall take the necessary measures to alleviate the potential detrimental effects of their confinement on them and on their community following their release from prison."

The Mandela Rules suggest a step-down pre-release strategy which at present is foreign to TDCJ's programs and culture.

Before the completion of the sentence, it is desirable that the necessary steps be taken to ensure for the prisoner a gradual return to life in society. This aim may be achieved, depending on the case, by a pre-release regime organized in the same prison or in another appropriate institution, or by release on trial under some kind of supervision which must not be entrusted to the police but should be combined with effective social aid.

Whether or not Texas fully adopts the Mandela Rules, that particular suggestion makes a lot of sense.

Understanding recidivism, planning for reentry
The interim "charge" up on Wednesday really addresses two separate but related issues: recidivism and reentry. This LBB report is the go-to document for recidivism data. For the cohort of prisoners released in 2011, the proportion rearrested within three years was:

Prison: 46.5%

State Jail: 62.0%

Intermediate Sanction Facility: 57.5%

While the proportion re-incarcerated in TDCJ in three years was much lower:

Prison: 21.4%

State Jail: 30.7%

Intermediate Sanction Facility: 36.5%

Among states, Texas' recidivism rates - especially the 3-year incarceration rate - are remarkably low. But that's no cause for celebration! In reality, Texas' recidivism rate is so low because our incarceration rate is too high. Texas incarcerates an excessive number of low-risk offenders who would be unlikely to re-offend even if they had never been sent to prison. So the low recidivism number is really, in many ways, a mark of shame. It's low because we're overusing incarceration as a punishment beyond what's necessary for maximizing public safety.

If Texas commits to a strategy of de-incarceration, in all likelihood recidivism rates will rise. But that's a sign of normalization, not of failure. The day we're really limiting incarceration to those we're "afraid of" as opposed to people we're mad at, those we're "afraid of" who're released will, as a class, recidivate more. But that's not an argument for locking up low-risk offenders!

As to reentry questions - which are related to but separate from the recidivism debate - legislators could do worse than to look again to the Mandela Rules, cited above, which advise that, "The duty of society does not end with a prisoner’s release. There should, therefore, be governmental or private agencies capable of lending the released prisoner efficient aftercare directed towards the lessening of prejudice against him or her and towards his or her social rehabilitation." In Texas by contrast, released prisoners are given $100 in "gate money" and a bus ticket.

The committee should look at some of the barriers to successful
reentry, like restriction on TANF benefits and food stamps for certain
drug offenders discussed in a Grits post earlier today. I'd also like to see the committee look for policies to reduce the accumulation of fines, fees, and debts facing ex-prisoners upon reentry. And there should be more focus on reducing the burden on families when their loved ones come home from prison.

The two biggest barriers to reentry, though, remain housing and jobs.
These are difficult problems which don't lend themselves to simple
solutions. In fact, it's hard to imagine making a dent in either without
some state investment, which as mentioned runs counter to an oil-starved budget
environment. And yet, if the Legislature doesn't address these questions
then we're not being honest about the often state-created barriers to
reentry facing ex-offenders.

The Lege eliminated job assistance for ex-prisoners during the 2011 budget crunch and has declined to limit the extent landlords can discriminate against ex-offenders regarding housing, even though one in five Americans has some sort of criminal record. In the past, efforts to expand reentry housing opportunities have been too quickly scuttled in response to NIMBY backlash. Legislators will need to pony up money for jobs programs and other reentry services and stand up to NIMBY opposition over housing to make much more headway on reentry questions. These problems are fairly well understood, but they'll require unusual political courage and money to honestly address them.

MORE: Grits contributing writer Michele Deitch emailed to say:

I wanted to flag for you that the Lege doesn't even have to reach
to an international source like the Mandela Rules for guidance on this
issue. The ABA's Standards on the Treatment of Prisoners provide
similar guidance as to the need for step-down type approaches. Here is a
link to the ABA Standards.

You
would want to look at Standards 23-2.6, 2.7, 2.8, 2.9, and 3.8, all of
which deal with seg issues. Pay particular attention to 2.9, which
addresses procedures for placement and retention in long-term segregated
housing, and especially subsection (f), which addresses the need for a
less-restrictive setting in the months before release to the community.
The drafters definitely had in mind a step-down type approach to
segregated housing. (As the original drafter, I can say that with some
authority! :) )

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